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HINDU SUCCESSION ACT AMENDMENT ACT 4/2005 - "Whether, on the facts and in the circumstances of the case, in view of Amendment Act 39 of 2005 to Section 6 of the Hindu Succession Act, 1956, and deletion of Section 23 which came into force with effect from 09.09.2005 the appellant is also entitled to a share along with her brothers in respect of B schedule properties".= "Restrictive, right contained in Section 23 of the Act, in view of our aforementioned discussions, cannot be held to remain continuing despite the 2005 Act. ----------------------------------------------------- "26. Indisputably, the question as to whether an amendment is prospective or retrospective in nature, will depend upon its construction. It is merely a disabling provision. Such a right could be enforced if a cause of action therefor arose subsequently. A right of the son to keep the right of the daughters of the last male owner to seek for partition of a dwelling house being a right of the male owner to keep the same in abeyance till the division takes place is not a right of enduring the nature. It cannot be said to be an accrued right or a vested right. Such a right indisputably can be taken away by operation of the statute and/or by removing the disablement clause. -------------------------------------------------------- "28. Thus, a right in terms of Section 23 of the Act to obtain a decree for partition of the dwelling house is one whereby the right to claim partition by the family is kept in abeyance. Once, the said right becomes enforceable, the restriction must be held to have been removed. Indisputably, when there are two male heirs, at the option of one, partition of a dwelling house is also permissible." 9. In that view of the matter, after the restrictive provision under Section 23 of the 1956 Act was omitted in the 2005 Amendment Act, it was not necessary for this Court to apply the said restriction now in this second appeal. In any event, items 1 to 3 of the plaint 'B' schedule are all vacant sites and not dwelling houses, even though they are stated to be appurtenant sites for the dwelling house. Therefore, this second appeal is liable to be allowed by applying Amended provisions of the Hindu Succession Act, 1956 as it stands today. All the substantial questions of law are answered accordingly. 10. In the result, the second appeal is allowed granting preliminary decree in favour of the plaintiff/appellant for partition of the plaint 'B' schedule properties into 12 equal shares and for allotment of one such share to the plaintiff/appellant. No costs.

The then learned Judge admitted this second appeal in view of
substantial questions of law raised in ground Nos.9(a) and (b) of the
memorandum. Those substantial questions of law are as follows:a) whether on the facts and in the circumstances of the case, the appellant has a right to claim partition of B schedule items in view of the facts that a division could be inferred between the male members-defendants 1 and 2 by reasons of the facts (a) that they were living in separate door numbers, (b) that they were enrolled as votors in two different door numbers and (c) that they have separate ration cards and such admitted facts are inconsistent with their non-division of B schedule properties.b) Whether in any view of the matter, the plaintiff is entitled to claim partition of items 2 and 3 of B schedule which cannot be considered as a dwelling house wholly occupied by members of the family within the meaning of that term under Section 23 of the Hindu Succession Act as item 2 is a cattle shed and item No.3 is a vacant site purchased by plaintiff father and not build upon.

The appellant's counsel filed a memo taking an additional ground in thesecond appeal as follows:"Whether, on the facts and in the circumstances of the case, in view of Amendment Act 39 of 2005 to Section 6 of the Hindu Succession Act, 1956, and deletion of Section 23 which came into force with effect from 09.09.2005 the appellant is also entitled to a share along with her brothers in respect of Bschedule properties".

This additional ground of substantial question of law arose in view of the 2005Act. Effect of this additional substantial question of law has to be consideredherein and decided.

2. The plaintiff/appellant and the 3rd defendant/3rd respondent are
sisters and the defendants 1 and 2/respondents 1 and 2 are their brothers, all
of them being children of late Oblineni Dorayya and Veeramma. The plaintifffiled the suit in the trial Court for partition of the plaint 'A' scheduleproperties into 4 equal shares and the plaint 'B' schedule properties into 12equal shares and for allotment of one such share each to her, for possession ofthe same and for profits, both past as well as future. It is her case thatduring the life time of Dorayya, there was partition of landed properties amongDorayya and the defendants 1 and 2 and the plaint 'A' schedule properties fellto the share of Dorayya. The plaint 'B' schedule consists of vacant sites.Dorayya died in December, 1970. It is the plaintiff's case that Dorayya lefthis last Will and testament dated 02.11.1966 bequeathing life estate to his wifeVeeramma and vested remainder to the plaintiff. Veeramma died intestate inJuly, 1972. Since mother died intestate possessed of the plaint 'A' scheduleland, all the parties are entitled to 1/4th share each therein.

3. The 3rd defendant remained ex parte.
It is contention of the
defendants 1 and 2 that there was no partition among Dorayya and the defendants
1 and 2 and that Will dated 02.11.1966 is forged andthat after death of theirfather, the defendants 1 and 2 partitioned their family properties in the year 1971 and that house portion and 'B' schedule properties combined together forms part of dwelling house of the defendants 1 and 2 and therefore are not liable for partition at the instance of the plaintiff.

4. After trial, the trial Court granted preliminary decree for partitionof 'A' schedule properties as prayed for; and denied partition of plaint 'B'schedule property. On appeal by the plaintiff, the lower appellate Courtdismissed the appeal holding that the plaintiff is not entitled to any share inthe plaint 'B' schedule property since the defendants 1 and 2 are living jointlyin the said house and therefore the suit becomes premature.
Thereupon, the
plaintiff filed this second appeal, which was admitted by this Court on the
above substantial questions of law.

5. In this appeal, it is contended by the appellant's counsel thatadmittedly the plaintiff is residing in a portion of the joint family house andthat the plaint 'B' schedule property cannot be construed as house propertywhich is in occupation of members of joint family for their residence jointlyand that therefore Section 23 of the Hindu Succession Act, 1956 (in short, the1956 Act) is not applicable to the said property.
It is further contended thatduring pendency of this second appeal, the Hindu Succession (Amendment) Act, 2005 (in short, the 2005 Act) came into force and Section 4 thereof omitted Section 23 of the 1956 Act which is the principal Act and that it resulted in taking away of restriction contained in Section 23 of the 1956 Act.
6. On the other hand, it is contended by the respondents' counsel thatSection 4 of the 2005 Act which omitted Section 23 of the 1956 Act can only beprospective in nature and it has no retrospective operation and that it cannotbe applied to pending civil proceedings which were commenced prior to the 2005Act coming into force on 09.09.2005.

7. Subject matter of this second appeal is only divisibility of theplaint 'B' schedule properties are concerned. The Courts below granted decreefor partition of the plaint 'A' schedule properties in favour of theappellant/plaintiff as prayed for and the said portion of the preliminary decreebecame final as none of the defendants 1 and 2 filed any appeal against thepreliminary decree relating to the plaint 'A' schedule properties. Thedefendants 1 and 2 placed strong reliance on Section 23 of the 1956 Act which was in the statute book upto coming into force of the 2005 Act omitting Section 23 of the Principal Act. According to the defendants 1 and 2, vacant sitesmentioned in the plaint 'B' schedule are appurtenant sites to joint family dwelling house. Even though the house property is only one, each of the partiesis occupying different portions of the house, the plaintiff being in occupation of the upstair portion of the house exclusively for her residence.

8. Be that controversy as it may,the Apex Court had an occasion toconsider effect of Section 4 of the 2005 Act on applicability of Section 23 ofthe Principal Act of 1956 in G.Sekar v Geetha1Section 4 of the 2005 Act readsas follows: "Omission of Section 23.- Section 23 of the principal Act shall beomitted".

The matter reached the Supreme Court in G.Sekar (1 supra) from the
Madras High Court wherein C.S.No.153 of 1996 was filed for partition of the suit
property which inter aia consisted of residential premises bearing No.36, 1st
Cross Street, West CIT Nagar, Madras.
That suit was filed prior to the 2005 Act
coming into force.
In C.S.No.153 of 1996 a preliminary decree for partition of
the suit property was passed in view of the 4th defendant also in his written
statement sought for partition of the property.
The learned Single Judge held
that Section 23 of the 1956 Act would not stand in the way of the plaintiff's
suit for partition. In the intra Court appeal filed as OSA, the Division Benchdismissed the appeal holding that even assuming there was any embargo at the time of filing the suit or passing judgment by the learned Single Judge ascontemplated under Section 23 of the 1956 Act as it stood, in view of theamendment and deletion of such provision, it is obvious that there is no suchembargo after 09.09.2005 and that after 09.09.2005 any female heir can seek forpartition even in respect of a dwelling house.
Thereupon, the matter reached the Supreme Court. The Supreme Court discussed the subject relating to Section23 of the 1956 Act and its deletion by the 2005 Act and concluded: "21. It is, therefore, evident that the Parliament intended toachieve the goal of removal of discrimination not only as contained in Section 6of the Act but also conferring an absolute right in a female heir to ask for apartition in a dwelling house wholly occupied by a joint family as provided forin terms of Section 23 of the Act. "22. Section 23 of the Act has been omitted so as to remove thedisability on female heirs contained in that Section. It sought to achieve alarger public purpose. If even the disability of a female heir to inherit theequal share of the property together with a male heir so far as jointcoparacenary property is concerned has been sought to be removed, we fail tounderstand as to how such a disability could be allowed to be retained in thestatute book in respect of the property which had devolved upon the female heirsin terms of Section 8 of the Act read with the schedule appended thereto. -------------------------------------------------------- "Restrictive, right contained in Section 23 of the Act, in view of ouraforementioned discussions, cannot be held to remain continuing despite the 2005Act. -----------------------------------------------------"26. Indisputably, the question as to whether an amendment is prospective or retrospective in nature, will depend upon its construction. It is merely a disabling provision. Such a right could be enforced if a cause of action therefor arose subsequently. A right of the son to keep the right of the daughters of the last male owner to seek for partition of a dwelling house being a right of the male owner to keep the same in abeyance till the division takes place is not a right of enduring the nature. It cannot besaid to be an accrued right or a vested right. Such a right indisputably can be taken away by operation of the statute and/or by removing the disablement clause. -------------------------------------------------------- "28. Thus, a right in terms of Section 23 of the Act to obtain adecree for partition of the dwelling house is one whereby the right to claimpartition by the family is kept in abeyance. Once, the said right becomesenforceable, the restriction must be held to have been removed. Indisputably,when there are two male heirs, at the option of one, partition of a dwellinghouse is also permissible."

9. In that view of the matter, after the restrictive provision underSection 23 of the 1956 Act was omitted in the 2005 Amendment Act, it was notnecessary for this Court to apply the said restriction now in this secondappeal. In any event, items 1 to 3 of the plaint 'B' schedule are all vacantsites and not dwelling houses, even though they are stated to be appurtenantsites for the dwelling house. Therefore, this second appeal is liable to beallowed by applying Amended provisions of the Hindu Succession Act, 1956 as itstands today. All the substantial questions of law are answered accordingly.

10. In the result, the second appeal is allowed granting preliminarydecree in favour of the plaintiff/appellant for partition of the plaint 'B'schedule properties into 12 equal shares and for allotment of one such share tothe plaintiff/appellant. No costs.
____________________________
SAMUDRALA GOVINDARAJULU,J
Dt.11th March, 2013

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The 1st respondent herein filed O.S.No.101 of 2011 in the Court of III
Additional District Judge, Tirupati against the appellants and respondents 2 to
5 herein, for the relief of perpetual injunction in respect of the suit schedule
property, a hotel at Srikalahasti, Chittoor District. He pleaded that the land
on which the hotel was constructed was owned by the appellants and respondents 2
and 3, and his wife by name Saroja, and all of them gave the property on lease
to M/s. Swarna Restaurant Private Limited, 4th respondent herein, under a
document …